DIGAMBAR SUTHAR Vs. SUAJAN

JUDGEMENT

(1.) This appeal arises out of a suit which was instituted by the plaintiff for recovery of possession after declaration of title to the lands of Schedule 2 of the plaint. These lands form a part of plot 1, Schedule 1, of the plaint. One Balaram Aeharjya, the predecessors of defendants 5 to 8 executed, a simple mortgage of the lands of Schedule 1 in favour of one Krishna Mangal Sen, the predecessors of defendants 11 to 13, on 10 November 1893. In December 1893 the said Balaram Aeharjya executed a usufractuary mortgage of the lands in suit in favour of the predecessors of defendants 1 to 4 and thereafter in June 1894 sold the said lands to them. In 1900 Krishna. Mangal Sen sued on his mortgage. In that suit defendants 1 to 4 or their predecessor were not parties. Krishna Mangal obtained a decree on 19 January 1901, which was made absolute on 31 November 1903. At the execution sale that followed the father of defendants 9 and 10 purchased the lands of Schedule 1 on 8 June 1904 and they obtained delivery of possession through Court on 13 October 1904. On 25th June 1908 defendants 9 and 10 sold plot 1, Schedule 1, to the plaintiff and put him in possession thereof. Defendants 1 to 4 then instituted a suit against the plaintiff for recovery of possession of the disputed lands and obtained a decree on 16 August 1918 and succeeded in recovering khas possession by eviction of the plaintiff. In the decree pissed as aforesaid a reservation was made is favour of the plaintiff in the following words: This decree will not, however, affect any equitable right of the defendant (i.e., the present plaintiff) to which he may be entitled under his prior mortgage.

(2.) The plaintiff then instituted the present suit on 13 August 1921.

(3.) The Munsif dismissed the suit. The Subordinate Judge has reversed that decision and has decreed the suit declaring the plaintiff's title to the land and ordering that defendants 1 to 4 will be at liberty to redeem the property on payment of Rs. 229-12-0 within two months and that in default of such payment within the said period the right of the said defendants to redeem would be barred and the plaintiff would be entitled to obtain khas possession. Defendants 1 to 4 have then preferred this appeal.